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ATF Agent Stops Gun Sale Over Marijuana Odor And DOJ Argues Cannabis Consumers Don’t Have 2nd Amendment Rights 



Second Amendment advocates are criticizing a pair of recent developments around marijuana and firearms—issues they say underscore the need for further reform.

Last month during a routine audit of a gun dealer, a federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) investigator reportedly ordered the store to stop the sale of a pistol because the investigator claimed the would-be buyer smelled of marijuana.

“I wasn’t high,” the prospective buyer told the Second Amendment Foundation, according to the outlet Ammoland, which referred to the individual only as Daniel. “None of this makes any sense to me.”

Daniel had already filed federal paperwork saying he was eligible to own a firearm and had passed a background check for the handgun, according to the report. When he went to pick it up at a Plant City, Florida store, however, the ATF industry operations investigator reportedly halted the sale.

ATF spokesman Jason Medina acknowledged that the smell of marijuana could have been from exposure to second-hand smoke and not an indication that the gun buyer himself had consumed cannabis.

“That’s true,” Medina told Ammoland.

Meanwhile in a federal appeals court case, the Department of Justice argued in a filing earlier this month that marijuana users “are more likely than ordinary citizens to misuse firearms,” likening them to “the mentally ill” as well as “infants, idiots, lunatics, and felons.”

“Because they are not ‘responsible citizens,'” DOJ argues, “unlawful drug users and addicts do not have a Second Amendment right to possess firearms.”

The case is the Biden administration’s appeal of a federal court decision out of North Carolina that found the government’s prohibition of firearm possession by a person who “is an unlawful user of or addicted to any controlled substance” is unconstitutional on its face.

The Firearms Policy Coalition noted that the filing came just hours before President Joe Biden said during his State of the Union address that no one should be in jail for using or possessing marijuana.

“No one should be disarmed and denied their natural right to self-defense just for using or possessing marijuana,” the group posted on social media.

The issue has been raised in multiple state legislatures and federal courts in recent years, as marijuana and gun rights advocates challenge the constitutionality of the federal ban that currently prevents cannabis consumers from owning firearms.

Just this month, Maryland lawmakers took testimony about a measure that would protect the gun rights of medical marijuana patients under state law, while organizers in Colorado are preparing to gather signatures to qualify a ballot initiative that would remove state barriers prohibiting gun owners from obtaining concealed handgun permits for lawful use of medical marijuana.

The federal Justice Department has insisted on the necessity of the banning cannabis consumers for possessing guns in numerous federal courts, arguing at points that people who use marijuana pose a unique danger.

The question over the constitutionality of the federal gun ban for people who use marijuana is now before the U.S. Supreme Court, which is considering taking up the issue.

Justices are expected to decide whether they will hear a federal government appeal of a circuit court ruling that found the firearm restriction violates the Second Amendment.

That ruling came from the U.S. Court of Appeals for the Fifth Circuit, which examined the federal statute known as Section 922(g)(3) that prevents someone who is an “unlawful user” of an illegal drug from buying or possessing firearms. The circuit court found the policy unconstitutional as applied to a man who faced a conviction after admitting to having used cannabis while in possession of a gun.

While people who use cannabis are barred from owning firearms under the statute, a little-notice FBI memo from 2019 that recently surfaced shows that the federal government generally does not consider it a violation of the law for medical cannabis caregivers and growers to have guns.

Republican congressional lawmakers have filed two bills in the first half of this current two-year session that focus on gun and marijuana policy.

Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed legislation last year to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.

Senate Majority Leader Chuck Schumer (D-NY) has committed to attaching that legislation to a bipartisan marijuana banking bill that advanced out of committee in September.

Meanwhile, Mast is also cosponsoring a separate bill from Rep. Alex Mooney (R-WV) this session that would more narrowly allow medical cannabis patients to purchase and possess firearms.

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Ben Adlin, a senior editor at Marijuana Moment, has been covering cannabis and other drug policy issues professionally since 2011. He was previously a senior news editor at Leafly, an associate editor at the Los Angeles Daily Journal and a Coro Fellow in Public Affairs. He lives in Washington State.


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